People v. Cassell CA2/1

Filed 7/30/21 P. v. Cassell CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B304875

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA145674)
v.

CHIZEM CASSELL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, John J. Lonergan, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
 Chizem Cassell appeals his conviction for voluntary
manslaughter (with a gun enhancement) and gun possession, for
which the trial court sentenced him to a term of 33 years four
months in prison. Cassell contends the trial court violated his
constitutional rights by failing to bifurcate admission of evidence
of his gang affiliation; erred by allowing spectator misconduct to
occur without admonishing the jury to disregard it; erred by
failing to instruct on a duress defense as to the gun possession
count; improperly admitted evidence of uncharged acts; and made
a sentencing error. He contends his convictions must be
reversed.
For reasons stated below, we affirm.
BACKGROUND
Just before midnight on March 20, 2018, Cassell and
Tavarious Gammage, both members of the Rollin 60’s street
gang, approached a home occupied by Bryan Bowen, his father
Willie Bowen, and his brothers Aaron Tanner and Vincent
Bowen. Cassell walked up to a car sitting in the driveway,
pointed a gun at its occupant, Henry Nichols, and demanded
money. When Nichols said he had none, Cassell asked where the
man with the gold chains was. Nichols said he did not know.
Cassell then entered the house without knocking, with Gammage
remaining outside.
Cassell, brandished a gun, punched Tanner in the face and
asked, “Where’s those gold chains at?” Bryan entered wearing
gold chains, and Cassell pointed the gun at him and demanded
them. Bryan punched Cassell and tried to grab the gun, and he
and Tanner wrestled with Cassell. Cassell shot Bryan in the
back, after which the gun jammed. Tanner stabbed Cassell and
disarmed him. Laverne Bowen and her son, Steven Ferrell,

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arrived from next door, and Tanner, Vincent, and Ferrell beat
Cassell with fists, a bat, and a chair, ultimately disabling him.
During the beating, Cassell yelled for help from Gammage, and
after he was subdued said, “60 sent me over here,” and “I’m just
over here because they sent me.”
Bryan died at the scene.
Cassell was charged with murder (Pen. Code,1 § 187, subd.
(a)(1), attempted home invasion robbery (§§ 664, 211), first
degree burglary (§ 459), second degree attempted robbery (§§ 664,
211), and unlawful firearm activity (§ 29820, subd. (b)), and it
was alleged he personally discharged a firearm (§ 12022.53, subd.
(d)) and the crimes were gang-related (§ 186.22, subd. (b)(1)(C)).
Codefendant Gammage was charged similarly.
At trial, Cassell claimed he went to the Bowen house to buy
drugs from Bryan, and became embroiled in a fight only because
Bryan inexplicably struck him.
The jury found Cassell not guilty of murder but guilty of
voluntary manslaughter and unlawful firearm activity, and found
true that he personally discharged a firearm, but found not true
that he committed the manslaughter to benefit a gang. The jury
deadlocked on the remaining counts, and did so again after
retrial. The jury found Gammage not guilty of murder and
deadlocked on the remaining counts.
After finding in a bifurcated proceeding that Cassell had
suffered a prior strike conviction (§§ 667, 1170.12), the trial court
sentenced him to a total of 33 years four months in prison.

1 Undesignated statutory refences will be to the Penal
Code.

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 DISCUSSION
A. Bifurcation
The information alleged the crimes were gang-related, and
the killing of Bryan Bowen qualified as special circumstance
murder because it was done to further the interests of a gang,
allegations the jury ultimately found to be not true.
Before trial, Cassell moved to bifurcate trial on the gang
allegations. The prosecution opposed the motion, stating it
anticipated that evidence would show that Cassell and Gammage
were Rollin 60’s gang members and that Cassell said after he was
subdued, “60 sent me over here,” and “I’m just over here because
they sent me.” The trial court denied the motion.
At trial, Laverne Bowen testified that Cassell said after he
was subdued, “60 sent me over here,” and “I’m just over here
because they sent me,” and Steven Ferrell testified Cassell said,
“the 60’s sent me.”
Los Angeles Police Officer Gregory Sovick testified as a
gang expert. He recognized Cassell and Gammage as Rollin 60’s
members, and identified the primary activities of the gang as
burglaries, robberies, vandalism, graffiti, shootings, assaults with
deadly weapons, homicides and drug trafficking. He identified
Cassell as having the moniker “Will Kill.” Officer Sovick opined
based on a hypothetical that the crime was committed for the
gang.
Cassell contends the trial court abused its discretion and
violated his federal constitutional right to a fair trial by declining
to bifurcate gang allegations and exclude gang evidence from the
prosecution’s case-in-chief. We disagree.
A trial court must limit the introduction of evidence and
argument to relevant and material matters. (Evid. Code, § 1044.)

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To carry out its duties, the court has discretion to bifurcate trial
issues, including enhancements, so as to avoid the risk of undue
prejudice to the defendant. (People v. Hernandez (2004) 33
Cal.4th 1040, 1049.) “But evidence of gang membership is often
relevant to, and admissible regarding, the charged offense.
Evidence of the defendant’s gang affiliation—including evidence
of the gang’s territory, membership, signs, symbols, beliefs and
practices, criminal enterprises, rivalries, and the like—can help
prove identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the
charged crime. [Citations.] To the extent the evidence
supporting the gang enhancement would be admissible at a trial
of guilt, any inference of prejudice would be dispelled, and
bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-
1050.) The defendant must “ ‘clearly establish that there is a
substantial danger of prejudice requiring that the charges be
separately tried.’ ” (Id. at p. 1050.) Denial of a motion to
bifurcate gang allegations from trial on substantive offenses is
reviewed for abuse of discretion. (Id. at p. 1040.)
Here, much of the gang evidence was relevant to the
charged offense in that it helped the jury understand Cassell’s
motivation and Gammage’s identity as an accomplice. The
testimony that Cassell was the aggressor in the altercation and
had said “60 sent me over here” was probative to show he went to
the Bowen house to commit a crime, not, as he claimed, to
purchase drugs.
Any prejudice was minimal to nonexistent. Bifurcation is
appropriate where the gang evidence is “so extraordinarily
prejudicial, and of so little relevance to guilt, that it threatens to
sway the jury to convict regardless of the defendant’s actual

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guilt.” (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Here,
the gang evidence appeared to have had no sway over the jury,
which found the gang allegations to be untrue, acquitted Cassell
of murder, and deadlocked on three counts as to both defendants.
Because the gang evidence was relevant to prove a fact of
consequence, and its unduly prejudicial effect was minimal, the
trial court was within its discretion to refuse bifurcation. And it
follows that doing so violated no federal due process right. (See
People v. Foster (2010) 50 Cal.4th 1301, 1335.)
Cassell argues that according to Laverne Bowen and
Steven Ferrell, Cassell did not say “60 sent me over here” until
after he was subdued. He is correct, but he ascribes no particular
importance to that distinction, and we discern none. The issue
informed by the gang evidence was Cassell’s motive; the point at
which that motive was revealed is immaterial.
Cassell argues that he did nothing to indicate when
approaching or entering the Bowen house to indicate he was
affiliated with a gang, and if the gang evidence had been
bifurcated the only evidence of guilt would have been that he
entered a house, perhaps with a gun and perhaps to buy
cigarettes or drugs, fought a man there, was severely beaten by
the group in the house, and killed a man during the violent
struggles. But this is precisely why the gang evidence should not
have been bifurcated, as without it there would have been no way
for the prosecution to prove its motive theory.
Cassell argues that by the time of closing argument the
prosecution had abandoned its gang motive theory, but that
appears to be a misreading of the record. What the prosecution
actually said was that Cassell saying “the 60s sent me” did not

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establish a duress defense to murder, not that it failed to
establish a motive for robbery.
B. Spectator Misconduct
On at least two days, some spectators in the courtroom
during trial wore, over defense counsel’s objection, pins and
T-shirts with pictures of Bryan Bowen and messages such as
“RIP Bryan” and “Long Live Bryan. Rest Easy, Baby.” Cassell
contends this violated his federal constitutional right to a fair
trial. We disagree.
“ ‘ “Spectator misconduct is a ground for mistrial if it is ‘of
such a character as to prejudice the defendant or influence the
verdict,’ ” and the trial court has broad discretion in making this
determination.’ ” (People v. Woodruff (2018) 5 Cal.5th 697, 758.)
Wearing a garment commemorating a victim is generally
not of such a character. “[A]llowing some courtroom spectators to
wear commemorative buttons depicting the likeness of a [victim]
is not unduly suggestive of guilt. Defendant’s claim to the
contrary is an insult to the intelligence, integrity, and resolve of
jurors. . . . [T]here is no reason to believe that the jurors, when
faced with the image of a [victim], would be unable or unwilling
to base their verdict solely on the evidence presented during the
trial.” (People v. Zielesch (2009) 179 Cal.App.4th 731, 745.) A
court must determine the specific message conveyed in light of
the particular facts and issues before the jury. (People v. Houston
(2005) 130 Cal.App.4th 279, 318 [button with the victim’s image
“delivered an ambiguous message at best, were relatively passive,
did not impart any facts outside the record to the jury, and did
not involve misconduct by anyone wearing a cloak of official
authority”].)

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 Here, no evidence suggests the adornments worn by
spectators accused Cassell of anything, said that Bryan had been
murdered, or expressed any sentiment but that individuals
sympathetic to the victim were among those displaying his
image. The trial court was in the best position to assess the
message of the adornments commemorating Bryan, and on this
record we cannot conclude the court abused its discretion in
finding them to be innocuous.
Cassell observes that in People v. Houston, the court twice
admonished the jury to disregard spectator displays of the
victim’s likeness. (People v. Houston, supra, 130 Cal.App.4th at
p. 318.) But no authority requires such an admonishment when
the displays are truly innocuous, and it is possible that an
admonishment here would have simply called more attention to
them. In this matter too, the trial court was in the best position
to weigh the value of an admonishment against the message
conveyed by the displays, and nothing in the record suggests it
abused its discretion in opting not to admonish the jury.
C. Instruction on Firearm Possession
The information originally charged Cassell with a violation
of section 29820, subdivision (b), possession of a firearm by a
convicted felon. The information was later amended to charge
him with a violation of section 25820, carrying a loaded firearm,
but at the close of evidence was amended back to the original
charge.
The jury was instructed with CALCRIM No. 2511, which
properly describes the elements of section 29820, although the
instruction incorrectly referred to section 25850 instead of section
29820.

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 Cassell argues this mis-reference in the instruction to
section 25850 constitutes an error, but fails to identify its
significance. We discern none. CALCRIM No. 2511 properly
instructed the jury. Although it should not have mentioned
section 25850, there is scant possibility the jury applied the
elements of that section to find Cassell guilty of violating section
29820.
D. Duress Instruction
When discussing jury instructions at trial, defense counsel
said that no evidence supported a duress defense, but the trial
court gave one anyway, over a defense objection, as to the robbery
and burglary counts. The court originally stated that some
evidence supported giving the instruction as to the gun
possession count as well, but in the end opted not to give one,
giving no explanation.
Cassell contends the trial court erred by failing to give a
sua sponte instruction on duress as to the gun possession count.
We disagree.
A trial court must instruct on general principles of law
relevant to the issues raised in a criminal case. (People v. Koontz
(2002) 27 Cal.4th 1041, 1085.) The trial court must sua sponte
instruct on a defense “if it appears that the [appellant] is relying
on such a defense, or if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with the
[appellant’s] theory of the case.” (People v. Maury (2003) 30
Cal.4th 342, 424.) For example, “[a] trial court is required to
instruct sua sponte on a duress defense if there is substantial
evidence of the defense and if it is not inconsistent with the
defendant’s theory of the case.” (People v. Powell (2018) 6 Cal.5th
136, 164.) Substantial evidence is that which, if believed, would

9
be sufficient for a jury to find a reasonable doubt as to
defendant’s guilt. (People v. Michaels (2002) 28 Cal.4th 486, 529;
People v. Salas (2006) 37 Cal.4th 967, 982-983.)
We review de novo a trial court’s failure to instruct on a
defense. (See People v. Millbrook (2014) 222 Cal.App.4th 1122,
1137.)
It is a defense to some crimes that the person who
committed the crime did so as a result of a reasonable belief that
doing so was necessary to save someone’s life in the face of an
imminent and immediate threat. (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 100.)
Here, Cassell claimed at trial that he went to Bryan
Bowen’s house to buy drugs, and defended himself after having
been attacked without cause. The only evidence of duress was
his statement after being subdued that the Rollin 60’s had sent
him to the house. But no evidence suggested that the gang
pressured him into taking a gun or threatened his or anyone
else’s life. Therefore no evidence supported a duress instruction,
and the court properly declined to give one.
Cassell argues there was substantial evidence supporting a
duress instruction, as the trial court itself must have initially
believed. But he adduces no such evidence in the record, and
fails to consider that by opting not to give the instruction, the
court reconsidered the matter and determined also that no such
evidence existed. As neither we nor apparently Cassell are aware
of any evidence of duress as to gun possession, we conclude the
trial court properly opted not to give the instruction.
E. Prior Bad Acts
Cassell testified in his own defense at trial.

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 Afterward, the prosecutor indicated his intent to impeach
Cassell with evidence that he committed four robberies between
December 2017 and March 2018. He asked Cassell if he
carjacked someone named McKay on January 2, 2018, near a
donut shop; robbed someone named Dawkins on January 26,
2018, at the same donut shop; robbed someone named Mendez on
January 30, 2018, nine blocks from the donut shop; and carjacked
someone named Jimenez on December 20, 2017. Cassell both
denied committing any of these crimes and said he had no
recollection of doing so.
Los Angeles Police Sergeant Cesar Espinoza later testified
that Cassell had been arrested for the December carjacking and
admitted committing it, and his fingerprints were found in the
car taken in the January incident. Both cases were submitted to
the district attorney, who rejected them for insufficient evidence.
No evidence was offered concerning the other two crimes.
The trial court instructed the jury that, if proved by a
preponderance of the evidence, the jury could consider evidence of
Cassell’s other crimes as relevant to motive and common plan.
The prosecutor did not mention the uncharged crimes in his
closing argument, and in his rebuttal argument said only that
they should be considered in evaluating Cassell’s credibility.
Cassell argues that the court abused its discretion by
allowing the prosecutor to ask Cassell about the uncharged
crimes and by admitting evidence that he committed them. We
disagree.
Absent a statutory exception, relevant evidence is
admissible. Evidence is relevant if it has any tendency in reason
to prove or disprove any disputed fact of consequence to the
determination of an action. (Evid. Code, § 210.) Nevertheless,

11
relevant evidence should be excluded if the trial court, in its
discretion, determines that its probative value is substantially
outweighed by the probability that its admission will create a
substantial danger of undue prejudice. (Evid. Code, § 352.) In
this context, unduly prejudicial evidence is evidence that would
cause the jury to “prejudge” a person on the basis of extraneous
factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.)
Evidence of specific instances of a person’s conduct is
inadmissible when offered to prove his or her conduct on a
specified occasion. (Evid. Code, § 1101, subd. (a).) But such
evidence is admissible if relevant to prove some fact other than
the defendant’s disposition to commit a crime. (Evid. Code, §
1101, subd. (b).) “[E]vidence of prior bad acts always involves the
risk of prejudice regardless of its probative value . . . .” (People v.
Humiston (1993) 20 Cal.App.4th 460, 481.)
“A witness may be impeached with any prior conduct
involving moral turpitude whether or not it resulted in a felony
conviction, subject to the trial court’s exercise of discretion under
Evidence Code section 352.” (People v. Clark (2011) 52 Cal.4th
856, 931.) “When determining whether to admit a prior
conviction for impeachment purposes, the court should consider,
among other factors, whether it reflects on the witness’s honesty
or veracity, whether it is near or remote in time, whether it is for
the same or similar conduct as the charged offense, and what
effect its admission would have on the defendant’s decision to
testify.” (Ibid.) If the conduct resulted in no conviction, “courts
may and should consider with particular care whether the
admission of such evidence might involve undue time, confusion,
or prejudice which outweighs its probative value.” (Id. at p. 932.)

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“[A] series of crimes may be more probative of credibility than a
single crime.” (Ibid.)
Burglary, robbery, and car theft involve acts of moral
turpitude, and are thus probative of a person’s honesty. (People
v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
We review for abuse of discretion the trial court’s decision
to admit evidence. (People v. Avitia (2005) 127 Cal.App.4th 185,
193.) “Where, as here, a discretionary power is statutorily vested
in the trial court, its exercise of that discretion ‘must not be
disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice.’ ”
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Here, the December and January carjackings were near in
time to the killing of Bryan Bowen. The nature of the thefts was
unlikely to inflame the jury, given the lack of inflammatory
details, the more serious nature of the charged crimes, and the
sorts of crimes alleged to have been committed by Cassell’s street
gang. The evidence of uncharged crimes also tended to prove
motive and common plan under Evidence Code section 1101.
(People v. Jackson (2016) 1 Cal.5th 269, 300 [admissibility under
Evidence Code section 1101 requires at least a degree of
similarity to prove intent].)
Given the probative value of and minimal undue prejudice
presented by the evidence of uncharged crimes, the minimal time
spent discussing it, and the jury admonition, we conclude its
probative value was not substantially outweighed by the risk of
undue prejudice. Accordingly, the trial court acted within its
discretion in permitting the prosecutor to ask appellant about the
uncharged crimes and present evidence concerning two of them.

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 Cassell argues that his acquittal on all theft-related
charges means that the uncharged offenses and charged ones
were dissimilar. We disagree. The question is not whether any
of the offenses, charged or uncharged, were proven. The question
is whether they involved similar acts. Here, the allegation that
Cassell went to the Bowen house to steal from the Bowens
presented a scenario similar to the uncharged offenses, where it
was alleged that Cassell approached vehicle owners to steal their
cars.
Cassell argues that the only inferences the jury could draw
from the evidence of uncharged acts was that if he robbed or stole
from four other victims, he robbed Bryan Bowen, and therefore
shot him in cold blood. We disagree. Another inference is that
Cassell had a tendency to be less than truthful in his testimony.
Another is that he harbors plans to steal from people, common to
his alleged plan to steal from Bowen.
Cassell relies on People v. Albarran (2007) 149 Cal.App.4th
214, which held that far-ranging gang evidence was inadmissible
in a case lacking any evidence of a gang motive, and People v.
Deeney (1983) 145 Cal.App.3d 647, which held that evidence that
a husband dragged his wife, partially clothed, by her feet onto the
grass in front of their duplex and then sprayed her with water
was unduly inflammatory, to illustrate how the unduly
prejudicial effect of evidence of uncharged crimes can
substantially outweigh its probative value. We do not disagree
with these cases, nor even have reason even to distinguish them.
Sometimes the balance between the probative value of evidence
and its unduly prejudicial effect will weigh against admission of
the evidence. That such examples exist in dissimilar cases sheds
no light on where the balance falls in this case.

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 Cassell argues that the prosecutor should not have been
permitted to cross-examine him about the carjackings if the only
purpose was to impeach that cross-examination testimony with
evidence that he testified untruthfully, because “[a] party may
not cross-examine a witness upon collateral matters for the
purpose of eliciting something to be contradicted.” (People v.
Lavergne (1971) 4 Cal.3d 735, 744.) But a defendant’s moral
turpitude is not a collateral matter, and the prosecutor did not
ask the questions merely to obtain denials.
A prosecutor may inquire into a defendant’s activities
which suggest moral turpitude, and in doing so may first cross-
examine the defendant regarding the activities. (See People v.
Doolin (2009) 45 Cal.4th 390, 435-437 [prosecutor permitted to
ask whether defendant denied carrying a bag full of guns, and
then present evidence regarding the guns]; People v. Nunez and
Satele (2013) 57 Cal.4th 1, 27-28 [prosecutor free to explore on
cross-examination whether defendant had attempted to bribe a
witness, and upon denial present impeachment evidence].)
Cassell argues that cumulative error requires reversal even
if no individual error does. But having found no individual
errors, there is nothing to cumulate.
F. Sentencing
At sentencing, the probation report cited the following
aggravating factors as justifying an upper term: (1) the crime
involved great bodily injury or callousness; (2) the crime reflected
planning; (3) Cassell had engaged in criminal behavior indicating
he was a danger to society; and (4) Cassell’s convictions were
numerous or increasingly serious. The report summarized
Cassell’s criminal history: a 2013 sustained petition for
marijuana possession; a 2015 sustained petition for attempted

15
robbery; a 2015 sustained petition for vehicle theft; a 2016
sustained petition for robbery; a 2016 sustained petition for
grand theft. The prosecutor argued that additional factors
weighed in aggravation: Cassell was armed, the victim was
vulnerable, Cassell played a leadership role, and Cassell
dissuaded a witness (when from jail he incited a witness not to
testify).
The trial court found that Cassell was audiotaped
dissuading a witness, the victim had been in his bedroom at
midnight when attacked, and Cassell’s behavior reflected
planning. When announcing sentence, the trial court did not list
aggravating factors, but referred to its prior statements and the
sentencing memorandum. It imposed the upper term of 11 years
for manslaughter, stating it would let the factors in aggravation
speak for themselves. It also imposed the upper term of 10 years
for the gun enhancement. Cassell argues the court impermissibly
used the facts of gun use and great bodily injury as both
enhancements and aggravating factors. We disagree.
In sentencing a defendant, the trial court “must select the
upper, middle, or lower term on each count for which the
defendant has been convicted[.]” (Cal. Rules of Court, rule
4.420(a).) In selecting the term, the court weighs the factors in
aggravation against those in mitigation, but may not impose the
upper term because of a fact also used to impose a sentence
enhancement. (§ 1170, subd. (b); People v. Scott (1994) 9 Cal.4th
331, 350; People v. Roberson (1978) 81 Cal.App.3d 890; People v.
Coleman (1989) 48 Cal.3d 112, 164-165 [court cannot rely on
great bodily injury to impose both an upper term and an
enhancement term].) “[A] single factor in aggravation is

16
sufficient to justify a sentencing choice.” (People v. Brown (2000)
83 Cal.App.4th 1037, 1043.)
We review a sentencing decision for abuse of discretion,
determining whether “the trial court could have based the
aggravating factor on evidence other than that which gave rise to
the enhancement. If so, the sentence may stand.” (People v.
Garcia (1995) 32 Cal.App.4th 1756, 1775; see also People v. Jones
(2009) 178 Cal.App.4th 853, 860-861.) In other words, remand is
unnecessary “ ‘if “[i]t is not reasonably probable that a more
favorable sentence would have been imposed in the absence of the
error.” ’ ” (People v. Osband (1996) 13 Cal.4th 622, 728.)
Here, the court had several aggravating factors justifying
imposition of the upper term on the manslaughter charge, but for
present purposes we need identify only one: Cassell shot the
unarmed Bowen in the back in his own home at midnight,
demonstrating callousness. (Cal. Rules of Court, rule 4.421(a)(1)
[an aggravating factor is that the “crime involved great
violence . . . or other acts disclosing a high degree of cruelty,
viciousness, or callousness”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED

CHANEY, J.
We concur:

BENDIX, Acting P. J. CRANDALL, J.*

*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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